KHASRU NUMAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 939/2017

[2018] HKCFI 1926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 939 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review dismissed.

It is further directed that:

(1)   If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal,

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal,

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper,

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions,

(5)   Liberty to apply.

Observations for the Applicant:

1.  The applicant is a 48-year-old national of Bangladesh who arrived in Hong Kong on 22 July 2008 with permission to remain as a visitor up to 29 July 2008 when he did not depart and instead overstayed until he was arrested by the police on 2 February 2009.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 5 February 2009 on the basis that if he returned to Bangladesh he would be harmed or killed by certain members of rival political party Bangladesh Nationalist Party (“BNP”) and by the police for the offence of illegally using alcohol.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Bhadikara, Habiganj, Bangladesh.  After leaving school he became a supporter of the Awami League Party (“AL”) and had held various positions in its youth wings and was eventually promoted to be a member of the Executive Committee of AL.

3.  In 2003 he opened a shop in Dhaka selling office stationery and became acquainted with several members of rival political party Bangladesh Nationalist Party (“BNP”) including JV and SA who frequented his shop.  One day in late 2007 unbeknown to him JV and SA left a revolver and some bullets in his shop which were later discovered by the police in a raid while the applicant was away and that his younger brother who was minding the shop was arrested.

4.  After the applicant leant about the incident he approached SA and asked whether it was left there in his shop by him and his friends, to which SA admitted that they put it there for some future operation, but he started to blame the applicant for losing their revolver and demanded that he compensated them for the loss, to which the applicant refused.

5.  Several weeks later the applicant was asked by SA to meet somewhere to discuss about the revolver, and when the applicant arrived he found himself surrounded by JV and his gang and was taken to a flat where he was slapped and kicked and was threatened that he would be killed unless he paid them 1 million Bangladesh taka as compensation for losing their revolver, and when the applicant could only come up with 50,000 taka and pleaded for time to raise the money, he was given one month to do so with a warning that he would be killed if he failed to pay the balance within one month.

6.  After his release the applicant closed down his shop and fled to Habiganj to hide from JV and his gang who however kept calling him on the phone threatening to kill him when they found him.  As the applicant was under a lot of stress, he went out one night drinking with some friends, and on his way home he ran into some policemen who tried to arrest him as drinking alcohol was forbidden in Bangladesh, and although he was able to flee from the scene and went home, when he later heard that the police were still looking to arrest him for the offence, he therefore left Habiganj for Dhaka, but as he was concerned that he was now being pursued by both JV and his gang as well as the police that it was no longer safe for him to remain in Bangladesh, he decided to depart on 22 July 2008 for Hong Kong where he subsequently lodged his torture claim with the Immigration Department which was later regarded as a non-refoulement claim upon the commencement of the Unified Screening Mechanism.

7.  On 24 November 2014 the applicant completed a Supplementary Claim Form (“SCF”) with legal representation from the Duty Lawyer Service in which he included a further claim of fear of harm from his neighbor AH who was a BNP member for a dispute with the applicant’s family after the applicant had left Bangladesh over certain project in the village when he was told that some of his family members had been attacked and fire was set to his house by AH and his followers.     

8.  By a Notice of Decision dated 28 October 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  In his decision the Director found the low intensity and frequency of the past ill-treatment and threats from JV and his gang indicative of a small future risk of harm upon the applicant’s return to Bangladesh as it is doubtful that after all these years that they would still have any adverse interest in him, that it was in fact a private monetary dispute that state and police protection would be available to the applicant if resorted to, that if he was indeed sought by the police for having committed the offence of using alcohol in Bangladesh that it would be inherent in or incidental to lawful sanction by the local police which would not be qualified for non-refoulement protection in Hong Kong, while his fear of being killed by the police in cross-fire is entirely his own speculation unsupported by any evidential basis, whereas his fear of harm from his family’s political foe AH is also based on hearsay and speculation unsupported by any direct or reliable evidence in particular of any such threats being directed at him personally and therefore it was not accepted that he would be at any real risk of harm from AH upon his return to Bangladesh, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 million people spread across a vast territory of more than 140,000 square kilometer that it would not be unduly harsh for the applicant as an able-bodied adult with working experiences to move safely to other areas away from his home district and beyond the capability or resources of his enemies to locate him.     

10.  By a Notice of Further Decision dated 8 November 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 4 November 2015, and for which he attended an oral hearing on 9 December 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found on the facts of the applicant’s case that there is no evidence that JV and his gang were acting in any official capacity or under the color of state authority or in the ostensible exercise of any public authority, hence state protection would be available to him if resorted to, and that reasonable internal relocation option in major urban areas away from his home district such as Dhaka is also viable to the applicant. 

13.  On 23 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)     procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)     irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)     irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)     irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;

(5)     irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)     procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)     procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8)     procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

14.  The applicant was by then almost four months out of time with his application as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

15.  The applicant’s explanation given at the oral hearing for his delay that he was not aware of the law requiring him to do so within three months of the Board’s decision of course cannot be accepted as a good reason, and to look for one requires me to consider the other circumstances of his case, and the only relevant one is to see whether there is any merit in his intended challenge as represented by those grounds put forward by him above.     

16.  However, they all seem to me just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I am unable to find any basis or merits in any of them.

17.  The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.

18.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his Torture Claim Form (“TCF”) and SCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant which had already been made available to him earlier when he still had legal representation, whilst his TCF and SCF were completed on his own instructions with legal assistance, and that at his oral hearing before the Board he never raised any issue or requested for further time from the adjudicator to properly prepare for his appeal.  In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

19.  The fact is that it has been established by both the Director and the Board in their decisions that the risks of harms from either JV and his gang or the applicant’s family political rival AH is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to other part of Bangladesh, there is simply no justification for affording him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.       

20.  In the premises and for the reasons given, I do not see any merits in any of the grounds or complaints of the applicant for his intended application for judicial review in which there could be any prospect of success, and in the absence of any good reason to extend time for his application otherwise late by almost four months which I find to be inordinate, according I hereby dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1